EXHIBIT 10.4.4
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is executed as of February 21, 2002,
by XXXXXXX REALTY INVESTORS, INC., a Georgia corporation (the "Guarantor"), in
favor of AMSOUTH BANK, a banking corporation organized and existing under the
laws of the State of Alabama (the "Bank").
Recitals
X. Xxxxxxx Properties Residential, L.P., a Georgia
limited partnership authorized to do business in North Carolina as Xxxxxxx
Properties Residential, Limited Partnership (the "Borrower"), has entered into a
loan agreement (the "Loan Agreement") with the Bank of even date herewith,
providing, among other things, for a loan by the Bank to the Borrower of
$24,000,000 (the "Loan"), as evidenced by the Borrower's note (the "Note"),
dated of even date herewith, and executed and delivered to the Bank.
B. The Guarantor has requested the Bank to make the Loan
to the Borrower.
C. The Bank has required, as a condition to making the
Loan to the Borrower, the execution of this Agreement by the Guarantor.
Agreement
NOW, THEREFORE, in order to induce the Bank to make the Loan
to the Borrower pursuant to the Loan Agreement, the Guarantor covenants and
agrees with the Bank as follows:
1. Guaranteed Payments. The Guarantor hereby guarantees
the due and punctual payment to the Bank when and as the same shall become due
and payable (whether by acceleration or otherwise) of the following amounts (the
"Guaranteed Payments"):
(a) all amounts of principal becoming due and payable on the
Note in accordance with the terms thereof and of the Loan Agreement,
whether at stated maturity or as an installment or by required
prepayment or notice of optional prepayment or declaration of
acceleration or otherwise;
(b) all amounts of interest becoming due and payable on the
Note in accordance with the terms thereof and of the Loan Agreement,
including interest on any overdue principal and (to the extent
permitted by applicable law) on any overdue interest;
(c) all indebtedness, obligations and liabilities of the
Borrower to the Bank with regard to any interest rate swap or interest
rate hedge agreement (or other similar derivative product) now existing
or hereafter executed that is related to the Note;
(d) all other amounts payable by the Borrower under the Loan
Agreement;
1
(e) all amounts payable by the Borrower under the terms of any
mortgages, security agreements, pledge agreements or other documents
evidencing or securing the Loan (the "Security Documents"); and
(f) all Recovered Payments (as hereinafter defined in Section
14).
The guaranty provided for in this Section 1 is an absolute,
unconditional, present and continuing guaranty of payment and not of
collectibility and is in no way conditioned upon or limited by any attempt to
collect from the Borrower or the exercise of any other remedies the Bank may
have against any other person, firm or corporation (including, without
limitation, any other guarantors and any other maker, endorser, surety of, or
other party to, any of the Loan Documents, as hereinafter defined, all of the
same being hereinafter collectively referred to as the "Obligors" and
individually as an "Obligor") or the resort to any other security, guaranty or
collateral held by the Bank, or any other action, occurrence or circumstance
whatsoever. If any Guaranteed Payment is not made when and as the same shall
become due and payable, the Guarantor shall on demand forthwith make such
Guaranteed Payment, in immediately available funds in lawful money of the United
States, directly to the Bank at its address specified in or pursuant to Section
13 of this Agreement. The Guarantor further agrees to be bound by all of the
terms and provisions appearing on the face of any instrument or agreement now or
hereafter evidencing, guaranteeing or securing any of the Guaranteed Payments,
including, without limitation, the Loan Agreement, the Note and the Security
Documents (all such instruments and agreements being hereinafter collectively
called the "Loan Documents"), and of any instrument or agreement extending or
renewing any such instrument or agreement (including any terms waiving notice
and agreeing to pay costs and expenses of collection in the event of default)
just as though the Guarantor had signed such instrument or agreement; and that
the Bank will not be required first to proceed against the Borrower or resort to
the security, guaranty or collateral, pledged or granted to it by any instrument
or agreement (including, without limitation, the Loan Documents), or otherwise
assigned or conveyed to it, but in case of default in the payment of any of the
Guaranteed Payments, the Bank may forthwith look to the Guarantor for payment
under the provisions hereof.
2. Nature of Obligations. The obligations and
liabilities of the Guarantor under this Agreement are joint and several with the
obligations and liabilities of all other guarantors (if any) now or hereafter
guaranteeing the Guaranteed Payments or any of them, are primary obligations of
the Guarantor, are continuing, absolute and unconditional, shall not be subject
to any counterclaim, recoupment, set-off, reduction or defense based upon any
claim that the Guarantor may have against the Borrower, the Bank, any of the
Obligors or any of their respective affiliates, and shall remain in full force
and effect until all of the Guaranteed Payments have been paid in full, without
regard to, and without being released, discharged, impaired, modified or in any
way affected by, the occurrence from time to time of any event, circumstance or
condition (whether or not the Guarantor shall have any knowledge or notice
thereof), including, without limitation, any one or more of the following,
whether or not with notice to, or consent of, the Guarantor: (a) any term or
provision of any instrument or agreement (including, without limitation, the
Loan Documents) applicable to the Borrower or any of the Obligors; (b) the
invalidity or unenforceability of any such instrument or agreement (including,
without limitation, the Loan Documents); (c) the failure or refusal to give
notice to the Guarantor of the occurrence of any event of default under any such
2
instrument or agreement (including, without limitation, the Loan Documents); (d)
any modification, amendment or supplement (whether material or otherwise) of any
obligation, covenant or agreement contained in any such instrument or agreement
(including, without limitation, the Loan Documents); (e) any assignment or
transfer of any such instrument or agreement (including, without limitation, the
Loan Documents) or of any interest thereunder, (f) the compromise, settlement,
release or termination of any or all of the obligations, covenants or agreements
of the Borrower, any of the Obligors or any other party under any such
instrument or agreement (including, without limitation, the Loan Documents); (g)
any waiver of payment, performance or observance by the Borrower, any of the
Obligors or any other party of any of their respective obligations, covenants or
agreements under any such instrument or agreement (including, without
limitation, the Loan Documents); (h) any consent, extension, indulgence or other
action or inaction (including, without limitation, any lack of diligence or
failure to mitigate damages) under or in respect of any such instrument or
agreement (including, without limitation, the Loan Documents), or any exercise
or non-exercise of any right, remedy, power or privilege under or in respect of
any such instrument or agreement (including, without limitation, the Loan
Documents); (i) the failure, omission, delay or lack of diligence on the part of
the Bank, or any assignee or successor thereto, to enforce, assert or exercise
any right, power, privilege or remedy conferred upon the Bank by any such
instrument or agreement (including, without limitation, the Loan Documents); (j)
the extension of time for payment of the principal of, or interest on, any of
the Guaranteed Payments, or the extension of the time for performance of any
other obligations, covenants or agreements under any such instrument or
agreement (including, without limitation, the Loan Documents) or under any
renewals or extensions thereof or successor agreements thereto; (k) the
furnishing or accepting of additional collateral, guaranties or other security
for any of the Guaranteed Payments or the release, modification, substitution,
nonexistence or invalidity of any collateral, guaranties or other security for
any of the Guaranteed Payments; (1) the death of, voluntary or involuntary
liquidation or dissolution of, sale or other disposition of all or substantially
all of the assets of, or the marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or other similar
proceeding affecting, the Borrower or any of the Obligors or any of their
respective assets, or any action taken by any trustee or receiver or by any
court in any such proceeding, or the disaffirmance, rejection or postponement in
any such proceeding of any of the Borrower's, any Obligor's or any other party's
obligations or undertakings set forth in any such instrument or agreement
(including, without limitation, the Loan Documents); (m) the failure of the
Bank, in the event of the occurrence of any of the events specified in
subsection (1) above, to file a claim or proof of claim or otherwise pursue any
of its remedies in any proceeding resulting from such event; (n) the release or
discharge (by operation of law or otherwise) of the Borrower, any of the
Obligors or any other party from the performance or observance of any
obligation, covenant, agreement, undertaking or condition to be performed by the
same under any such instrument or agreement (including, without limitation, the
Loan Documents); (o) any limitation on the liabilities or obligations of the
Borrower, any of the Obligors or any other party under any such instrument or
agreement (including, without limitation, the Loan Documents), or any
termination, cancellation, frustration, invalidity or unenforceability, in whole
or in part, of any such instrument or agreement (including, without limitation,
the Loan Documents) or any limitation on the method or terms of payment
thereunder that may now or hereafter be caused or imposed in any manner
whatsoever; (p) any failure on the part of the Borrower, any of the Obligors or
any other party for any reason fully to perform or to comply with any term of
any such instrument or
3
agreement (including, without limitation, the Loan Documents); (q) any claim
whatsoever of the Guarantor against the Borrower or any of the Obligors; (r) any
understanding or agreement that any other person, firm or organization was or is
to execute this Agreement, any of the Loan Documents, or any other instrument or
agreement evidencing or securing any of the Guaranteed Payments; or (s) any
other matter that might otherwise be raised in avoidance of, or in defense
against an action to enforce, the obligations of the Guarantor under this
Agreement.
3. Waiver by Guarantor. The Guarantor unconditionally
waives, insofar as such Guarantor's obligations hereunder are concerned: (a)
notice of the execution and delivery of the Loan Documents; (b) notice of the
Bank's acceptance of and reliance on this Agreement or the making of the Loan to
the Borrower; (c) notice of any of the matters referred to in Section 2 of this
Agreement; (d) all notices required by statute, rule of law or otherwise to
preserve any rights against the Guarantor hereunder, including, without
limitation, any demand, proof or notice of non-payment of any Guaranteed Payment
by the Borrower or any of the Obligors and notice of any failure on the part of
the Borrower or any of the Obligors to perform or comply with any term of any
instrument or agreement (including, without limitation, the Loan Documents) to
which the Borrower or any of the Obligors is a party; (e) any right to the
enforcement, assertion or exercise of any right, power or remedy under or in
respect of any such instrument or agreement (including, without limitation, the
Loan Documents); and (f) any requirement that the Borrower, any of the Obligors
or any other person be joined as a party to any proceeding for the enforcement
of any term of any such instrument or agreement (including, without limitation,
the Loan Documents), any requirement of diligence on the part of the Bank and
any requirement on the part of the Bank to mitigate any damages resulting from
any non-payment of any Guaranteed Payment or any default or event of default
under any such agreement or instrument (including, without limitation, the Loan
Documents). All waivers granted by the Guarantor hereunder, including, without
limitation, the waiver by the Guarantor of the rights of subrogation to any
Lender's rights against the Borrower and others as provided herein, shall be
unconditional and irrevocable irrespective of whether the Guaranteed Payments
have been paid in full by the Guarantor or any other party.
4. Subordination; Assignment; Waiver of Claims.
(a) Subordination. Any interest of the Guarantor in any
collateral assigned to the Bank as security for indebtedness incurred under the
Loan Agreement, whether now owned or hereafter acquired by the Guarantor, is
hereby subordinated to the interest of the Bank therein. Any indebtedness of the
Borrower to the Guarantor, whether presently existing or hereafter incurred, is
hereby subordinated to all indebtedness of the Borrower to the Bank incurred
pursuant to the Loan Agreement. Any notes now or hereafter evidencing
indebtedness of the Borrower to the Guarantor shall, upon request of the Bank,
be marked with a legend that the same are subject to this Agreement, and/or
endorsed and delivered to the Bank.
(b) Assignment. Any indebtedness of the Borrower to the
Guarantor is hereby assigned to the Bank as security for the performance of the
Guarantor's obligations hereunder and for the performance of the obligations of
the Borrower to the Bank under the Loan Agreement. If the Bank so requests, any
indebtedness of the Borrower to the Guarantor shall be collected, enforced and
received by the Guarantor as trustee for the Bank, to be paid over to the Bank
on account of the
4
indebtedness and obligations of the Borrower guaranteed hereunder, but without
reducing or affecting in any manner the liability of the Guarantor under the
provisions of this Agreement. The Guarantor agrees to and the Bank is hereby
authorized, in the name of the Guarantor from time to time, to execute and file
financing statements, security instruments and other documents, and to take such
other action as the Bank deems necessary or appropriate to effect, preserve and
enforce its rights hereunder.
(c) Waiver of Claims. Notwithstanding any payment or
payments made by the Guarantor under this Agreement, the Guarantor expressly,
irrevocably and unconditionally waives and releases any and all "claims" (as
that term is defined in the Bankruptcy Reform Act of 1978, as amended 11 U.S.C.
Sections 101 et seq., and the regulations adopted and promulgated pursuant
thereto (collectively, the "Bankruptcy Code")) it may now or hereafter have
against the Borrower, and shall not be entitled to, and hereby expressly waives,
any and all rights of subrogation, reimbursement, indemnity, exoneration and
contribution against the Borrower, which the Guarantor may now or hereafter have
against the Borrower without regard to whether any such right or claim arises
expressly; provided, that such waiver and release shall not be effective as to
any such claim or entitlement or such subrogation and other rights that accrue
after the indefeasible payment, performance or other satisfaction in full of the
Guaranteed Payments.
5. Enforcement Expenses. The Guarantor shall indemnify
and hold harmless the Bank against any loss, liability or expense, including
reasonable attorneys' fees and disbursements and any other fees and
disbursements, that may result from any failure of the Borrower to make any
Guaranteed Payment when and as due and payable or that may be incurred by or on
behalf of the Bank in enforcing any obligation of the Borrower or any of the
Obligors to make any such Guaranteed Payment and any obligation of the Guarantor
hereunder.
6. Delay and Waiver by the Bank. No delay in the
exercise of or failure to exercise any right, remedy or power accruing upon any
default or failure of the Guarantor in the performance of any obligation under
this Agreement shall impair any such right, remedy or power or shall be
construed to be a waiver thereof, but any such right, remedy or power may be
exercised from time to time and as often as may be deemed by the Bank expedient.
In order to entitle the Bank to exercise any right, remedy or power reserved to
it in this Agreement, it shall not be necessary to give any notice to the
Guarantor. If the Guarantor should default in the performance of any obligation
hereunder, and such default should thereafter be waived by the Bank, such waiver
shall be limited to the particular default so waived. No waiver, amendment,
release or modification of this Agreement shall be established by conduct,
custom or course of dealing, but solely by an instrument in writing duly
executed by an executive officer of the Bank.
7. Consent to Jurisdiction, Waiver of Jury Trial. The
Guarantor irrevocably (a) waives its right to a jury trial for any controversy
arising out of this Agreement or any transaction described herein; (b) submits
to the jurisdiction of any state or federal court sitting in Birmingham, Alabama
over any suit, action or proceeding arising out of or relating to this
Agreement; and (c) waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
5
inconvenient forum. Final judgment in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon the Guarantor and
may be enforced in any court to the jurisdiction of which the Guarantor is
subject, by a suit upon such judgment, provided that service of process is
effected upon the Guarantor in one of the manners specified in this Section 7 or
as otherwise permitted by law. The Guarantor hereby irrevocably designates and
appoints Xxxx X. Xxxxxx of Walston, Wells, Xxxxxxxx & Xxxxx, LLP, 000 00(xx)
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, as such Guarantor's
authorized agent to accept and acknowledge on such Guarantor's behalf service of
any and all process that may be served in any suit, action or proceeding of the
nature referred to in this Section 7 in any state or federal court sitting in
the State of Alabama. If such agent shall cease so to act, the Guarantor shall
irrevocably designate and appoint without delay another such agent in the State
of Alabama satisfactory to the Bank and shall promptly deliver to the Bank
evidence in writing of such other agent's acceptance of such appointment and its
agreement that such appointment shall be irrevocable. The Guarantor hereby
consents to process being served in any suit, action or proceeding of the nature
referred to in this Section 7 by (a) the mailing of a copy thereof by registered
or certified mail, postage prepaid, return receipt requested, to such Guarantor
at its address designated in or pursuant to Section 13 hereof and (b) serving a
copy thereof upon the agent, if any, designated and appointed by such Guarantor
as its agent for service of process by or pursuant to this Section 7. The
Guarantor irrevocably agrees that such service (i) shall be deemed in every
respect effective service of process upon such Guarantor in any such suit,
action or proceeding and (ii) shall, to the fullest extent permitted by law, be
taken and held to be valid personal service upon such Guarantor. Nothing in this
Section 7 shall affect the right of the Bank to serve process in any manner
otherwise permitted by law or limit the right of the Bank otherwise to bring
proceedings against the Guarantor in the courts of any jurisdiction or
jurisdictions.
8. Reporting Requirements, Financial Covenants.
(a) The Guarantor hereby agrees to provide to the Bank an
annual income statement and balance sheet of the Guarantor prepared in
accordance with the books and records of the Guarantor and as soon as practical,
from time to time, such other information regarding the financial condition of
the Guarantor as the Bank may reasonably request, specifically including but not
limited to the following:
(i) annually, within twenty (20) days of filing, a copy of the
federal income tax return of the Guarantor for the prior fiscal year;
and
(ii) an annual balance sheet and cash flow statement for the
Guarantor, to be delivered to the Bank no later than March 31 of each
year for the immediately preceding fiscal year.
(b) During the term of the Loan, the Guarantor shall at all times
maintain a Leverage Ratio of less than 75%. For purposes hereof, "Leverage
Ratio" shall mean the ratio of (i) the outstanding principal balance of all
notes payable of the Guarantor to (ii) net real estate assets (as determined in
accordance with generally accepted accounting principles) of the Guarantor plus
accumulated depreciation plus unrestricted cash of the Guarantor.
6
(c) During the term of the Loan, the Guarantor shall at all times
maintain a Fixed Charge Coverage Ratio of no less than 1.4 to 1.0. For purposes
hereof, "Fixed Charge Coverage Ratio" shall mean the ratio of (i) income from
operations (as set forth on the Guarantor's income statement) plus depreciation
to (ii) interest expense plus scheduled principal payments (excluding balloon
payments) plus scheduled preferred stock dividends.
(d) During the term of the Loan, the Guarantor shall at all times
maintain a Minimum Net Worth of no less than $25,000,000. For purposes hereof,
"Minimum Net Worth" shall mean shareholders' equity of the Guarantor plus
accumulated depreciation.
(e) Each of the covenants described in subsections (b), (c) and
(d) above are referred to herein as the "Guarantor Covenants". The Guarantor, no
later than August 20 and February 20 of each year, shall (i) certify to the Bank
that the Guarantor Covenants are then satisfied, and (ii) furnish to the Bank
documentation evidencing the calculation of the Guarantor Covenants.
9. Intent. The purpose of this Agreement is to
memorialize the parties' understanding that, if the Borrower does not pay or
otherwise fully perform its obligations in a timely manner as provided in the
Loan Agreement, the Guarantor will promptly pay the amount due and payable by
the Borrower to the Bank upon demand.
10. Consideration. In order to induce the Bank to make
the Loan, the Guarantor, who acknowledges that it will benefit from the Loan to
the Borrower, has agreed to execute and deliver this Agreement on the
understanding that doing so is a condition precedent to the Bank's making the
Loan.
11. Guarantor's Warranty; Related Parties. The Guarantor
confirms and warrants that it is the sole general partner of the Borrower, has
knowledge of and is familiar with the Borrower's business affairs, books and
records, has the ability to influence the Borrower's decision making process,
and warrants that the Borrower is in sound financial condition and will perform
in accordance with the terms and conditions of the Loan Agreement.
12. Reliance. The Guarantor acknowledges that the Bank is
relying upon the Guarantor's covenants herein in entering into the Loan with the
Borrower, and undertakes to perform its obligations hereunder promptly and in
good faith.
13. Notices and Communications. All notices and other
communications hereunder shall be in writing and shall be effective when sent by
certified or registered mail, return receipt requested: (a) if to the Guarantor,
at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other address as
the Guarantor shall have furnished to the Bank, or (b) if to the Bank, addressed
to it at X.X. Xxx 00000, Xxxxxxxxxx, XX 00000, Attention: Commercial Real Estate
Loan Department, or at such other address as the Bank shall have furnished to
the Guarantor.
14. Termination of Agreement. This Guaranty shall remain
in full force and effect until the Guaranteed Payments shall have been paid in
full; provided, however, that regardless of whether this Guaranty shall have
been terminated, this Guaranty and the obligations of the Guarantor
7
hereunder shall continue to be effective or be automatically reinstated, as the
case may be, any time payment of all or any part of the Guaranteed Payments is
recovered (individually, a "Recovered Payment" and collectively, the "Recovered
Payments") from the Bank as a result of a preference or other claim made under
any bankruptcy, insolvency, dissolution, liquidation, reorganization,
receivership or similar law or otherwise.
15. Survival of Agreements, etc. All agreements,
representations and warranties of the Guarantor hereunder shall survive the
execution and delivery of this Agreement, any investigation at any time made by
or on behalf of the Bank, the acceptance of the Note by the Bank and any
disposition and payment of the Note.
16. Successors and Assigns. All covenants and agreements
of the Guarantor set forth in this Agreement shall bind the Guarantor and its
successors and assigns and shall inure to the benefit of, and be enforceable by,
the Bank and its successors and assigns including, without limitation, any
holder of the Note.
17. No Oral Agreements. This written Agreement is the
final expression of the agreement between the parties hereto with respect to the
subject matter hereof, and this Agreement may not be contradicted by evidence of
any prior agreement between such parties. All previous oral agreements between
the parties hereto have been incorporated into this Agreement, and there is no
unwritten oral agreement in existence between the parties hereto.
18. Miscellaneous. Neither this Agreement nor any term
hereof may be terminated, amended, supplemented, waived, released or modified
orally, but only by an instrument in writing signed by the party against which
the enforcement of the termination, amendment, supplement, waiver, release or
modification is sought. This Agreement shall in all respects be governed by, and
construed and enforced in accordance with, the laws of the State of Alabama. If
any term of this Agreement or any obligation hereunder shall be held to be
invalid, illegal or unenforceable, the remainder of this Agreement and any other
application of such term shall not be affected thereby. The section headings of
this Agreement have been inserted for convenience only, and shall not modify,
define, limit or expand the express provisions hereof.
19. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Alabama.
8
IN WITNESS WHEREOF, Xxxxxxx Realty Investors, Inc. has caused
this Agreement to be executed by its duly authorized officer as of the date
first above written.
XXXXXXX REALTY INVESTORS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Its Secretary and Treasurer
Tax I.D. Number: 58-21228873
STATE OF GEORGIA )
XXXXXX COUNTY )
I, the undersigned authority, a Notary Public in and for said County in
said State, hereby certify that Xxxxxxx X. Xxxxxxx, whose name as Secretary and
Treasurer of Xxxxxxx Realty Investors, Inc., a corporation, is signed to the
foregoing instrument and who is known to me, acknowledged before me on this day
that, being informed of the contents of said instrument, he, as such officer and
with full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this the 19th day of February,
2002.
/s/ XXXXXXX X. XXXXXXXXXX
-----------------------------------------
[SEAL] Notary Public
AFFIX SEAL
My commission expires: June 17, 2005
9
